Research › Search › Judgment

Allahabad High Court · body

2015 DIGILAW 2829 (ALL)

Aayal Das v. Shelendra Agarwal

2015-09-09

SUNITA AGARWAL

body2015
JUDGMENT Mrs. Sunita Agarwal,J. Heard learned counsel for the parties. 2. The order dated 4.7.2015 passed by the Prescribed Authority on the application for setting aside ex-parte order dated 24.3.2014 is under challenge in the present writ petition. 3. Challenge is on the ground that the satisfaction with regard to service of notice through publication in daily newspaper 'Nisha Naresh' cannot be held sufficient. It is not one of the mode of service of notice as prescribed under Rule 28 of the U.P. Act No.13 of 1972. It is recorded by the court below that the notices were sent thrice at the address of the petitioner-tenant but they have been returned back with the endorsement that no one met at the place and the information has been given to the family members. The notice has been sent to the place of business of the petitioner, therefore,endorsement made by the process server that the information was given to the family members do not seem to be correct. The Prescribed Authority did not record its satisfaction with regard to service of notice by registered post and only service by publication was accepted.The adverse inference has been drawn on the averments made by the petitioner in the affidavit filed in the application for recall of the exparte order that he was well aware of the registered notice which were sent at his address. 4. The contention is that report of the process server has been procured by the landlord in collusion with postal employee. The alleged news paper has no circulation in the Agra. In view of this submission made by the petitioner -tenant the adverse inference drawn by the Prescribed Authority is illegal. 5. Reliance has been placed on the judgment of this court in Smt. Sweta Tiwari Vs. Second Additional Civil Judge, Allahabad and others, Allahabad Rent Cases , 1989(2) wherein it has been held that in case the notice sent by the registered post had come back without service and the Prescribed Authority also did not record the service as sufficient, the service effected through publication cannot be accepted as sufficient as there is no mode of service by publication under Rule 28 of the U.P. Act No.13 of 1972. 6. 6. This court is of the view that in the facts and circumstances of the case the order passed by the Prescribed Authority recording its satisfaction regarding service of notice and further passing the exparte order dated 24.3.2014 cannot be sustained . The order dated 4.7.2015 for rejecting the application for recall of the order dated 24.3.2014 is therefore faulty. Both the orders are hereby quashed. The P.A. Case No.38 of 2012 is to be proceeded on merit after providing opportunity to the petitioner tenant to file his written statement and lead his evidence. 7. Shri Madhav Jain, learned counsel for the petitioner submits that the petitioner would file his written statement within fifteen days from today. The evidences shall also be led within a further period of one month. 8. Shri Ashish Gupta, learned counsel for the respondent no.1 submits that the respondent has already led his evidence. In view thereof it is directed that the prescribed Authority shall proceed with the matter expeditiously and make an endevour to decide the release application preferably within a period of two months from the date of leading of the evidence by the petitioner-tenant. It goes without saying that no unnecessary adjournment shall be granted to either of the parties. 9. With the aforesaid observation, the writ petition is allowed.